theory is subservient to facts, and reasoning that aspires to operate independently from factual experience is ill-conceived

Historical school

Volkgeist

4 of 10

German civil code - BGB

idea/fact tension manifests itself

Privatautonomie = celebrates subjective -- freedom of each individual to govern himself through hisown will

tempered by imposition of constrants upon way in which this freedom can be exercised -- only those acts of will that are deemed acceptable in the larger context of German juridical order ever materialize as legal facts

balance of subjective and objective

more academic and exhaustive -- much longer process to make

infiltration of public into private

5 of 10

History of English Private Law

Development of common law

William the Conqueror

integrated local customs and isntitution into single admin structure governed by King

Domesday book (1086)

Royal intervention into local justice at first limited to tax matters, but fiscal considerations soon caused this to extend to civil and criminal matters

end of 12th century -- ambulatory justice system that Henry I had established had by regularity and increased frequency of its circuits become most powerful institution in ENG

13th century -- royal justice grew from occasional jurisdiction into highly solicited one -- 3 permanent courts in Westminster

early common law was procedural 'common custom' concerned almost exclusively with matters of proof -- empty procedural framework to be filled with substance by jury

identity of those in charge of administering justice -- not conceptual thinkers

ideas still present in every judicial decision -- in time extricated themselves from material, heavily procedural context of decision -- formed substantive legal rules

Equity -- operate like continental court -- flexible and not formally bound by precedent -- less important -- Judicature Act stripped equity of separate jursidiction and merged it with CL

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Comparison of law -- contractual mistake

French

subjective representation

any non-trivial mistake in mind of even on of two parties suffices to undermine existence of validity of contract

set aside in all such cases as matter of principle

logic of autonomy of will dictates that mistaken party's subjective intention trumps non-mistaken party's objective interpretation of this intention

French judicial practice is more qualified -- 'exceptions' and 'qualifications'